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March 19, 2016

Laws, Redux

In an earlier post, I discussed the problems with unknown (and potentially, unknowable) laws and regulations which seem to proliferate and mandate ridiculous and seemingly arbitrary penalties for behavior which otherwise seems innocuous. That post was quoted by Donald McClarey at the American Catholic blog, and discussed quasi-ad-nauseum. Some of what I say here

Today, I would like to discuss the link between behavior and law. In my previous post, I cited Aquinas for the following proposition:

Now a rule or measure is imposed by being applied to those who are to be ruled and measured by it. Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Wherefore promulgation is necessary for the law to obtain its force.

And, I also stated in regard to promulgation that Blackstone would tend to agree. To expand upon that thought, here are Blackstone's considerations as to promulgation:

Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament.

And here, something similar, by the Swiss philosopher, Jean-Jacques Burlamaqui:

But this is not sufficient. That the laws may be able to impose a real obligation, and reckoned just and equitable, it is necessary the subjects should have a perfect knowledge of them; now they cannot of themselves know the civil laws, at least those of an arbitrary nature; these are, in some measure, facts of which the people may be ignorant. The sovereign ought therefore to declare his will, and to administer laws and justice, not by arbitrary and hasty decrees, but by mature regulations, duly promulgated.

Blackstone and, to a lesser extent, Burlamaqui, both discuss the idea that laws may be known by "universal tradition and long practice," and thus, be promulgated by being known already, as they are not "of an arbitrary nature."

Keeping that in mind, I turn to the criminal law (including here, as before, penal laws which impose so-called "civil fines," as well as actual criminal laws), for an interesting distinction. One of the ways in which criminal law may be classified is between those that prohibit behavior that is malum in se versus those that are malum prohibitum.

Crimes, or perhaps it may be better classified as "actions," which fall under the idea of malum in se, are those which society feels are wrong in and of themselves. These would be wrong, to the minds of most, whether or not they were outlawed by written law. One may think here of murder, theft, assault, and the like.

On the other hand, actions which are criminalized, which otherwise seem innocuous, are those called malum prohibitum. If one considers some of the basic laws in the United States, such as driving on the right side of the road, a drinking age of 21, and insurance requirements, these are things that are not wrong in and of themselves, but because such have been legislated. If tomorrow, the drinking age were lowered to 19, one could argue that it was imprudent, but it would not be clearly the same as the societal prohibition against murder.

So, clearly, more of a mechanism is needed in terms of the latter laws, which cannot as easily be known (more or less - it would be hard to argue that one didn't know to drive on the right side of the road) in order to communicate them to the populace in general. For instance, drinking age is known through signs posted and through general knowledge, and enforced without penalty (at first, simply denial without age proof).

Now, a general maxim throughout many years of law, known even to those on a "lay" basis to its study, is ignorantia juris non excusat - in essence, ignorance of the law is no excuse. It has been a maxim not only in American law, but as far back as Ancient Greece. The Model Penal Code, developed as a way to codify and unify American penal law, through drafting and consideration by different committees, etc. It has been adopted, in part, or in whole, by many American jurisdictions. Part of that code states:

Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides.

Essentially, this means that if you are somehow ignorant of a law or its meaning, you still cannot use that as an excuse to avoid being prosecuted.

As part of the discussion on The American Catholic, one poster hinted that I was advocating the end of all government regulation. This is not the case. Rather, I point to cases in my previous post to make the point that there is a web of complex regulations that are malum prohibitum of which "normal" people have no chance or opportunity to be aware. Those charged with enforcement of these regulations are unaware of how many there are, leading one to believe that none know exactly what they are. I do not refer here to specific fields that are highly dangerous or operate in critical sectors (e.g., oceanic oil drilling, nuclear energy, etc.), but rather to things like federal rules regulating caring for a wild deer, which people may not even suspect affect their lives.

James Madison outlined two reasons for stability and clarity of laws in Federalist 62 ("Concerning the constitution of the Senate...), saying:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulg[at]ed, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed.

Madison added:

Another effect of public instability, is the unreasonable advantage it gives to the sagacious, the enterprising, and the monied few, over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow citizens. This is a state of things in which it may be said, with some truth, that laws are made for the few, not for the many.

To those who now consider going into business in the United States, there are myriad laws regarding hiring and firing, such that lawyers must be routinely consulted, especially in certain fields, before a given individual can be fired for (as an example) clear dereliction of duty. This gives a clear advantage to larger corporations, who can afford to hire lawyers to avoid legal fees, and hire lawyers to get them out of trouble should trouble arise. And Madison directly states this next:

The want of confidence in the public councils, damps every useful undertaking; the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance, that his preparatory labours and advances will not render him a victim to an inconstant government?

In other words, people will become afraid to invest in new commerce, for fear that the undertaking may be restricted or eliminated before it can come to fruition. Finally, Madison makes an important point, that order and trust is undermined through a fluctuating policy. He argues:

But the most deplorable effect of all, is that diminution of attachment and reverence, which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected, without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

One need only look at the approval ratings for Congress to wonder if the seeming arbitrariness of the enforcement of unknowable malum prohibitum criminal laws has affected the respect that individuals have for government. One might add to Madison, and note that, when people lose respect for law, they also lose the desire to obey it, as the authority of the law has been drained, and no longer recognized. With the breakdown of order, even malum in se laws stop being recognized as much, and the general disorder in society is increased.